PROTECT Lawsuit Against APA-DEC Over ACR Permit is Serious and Important; PROTECT Rebuts Jim LaValley’s Flawed Criticisms of this Lawsuit

July 20, 2012

Jim LaValley’s op-ed piece in the July-August 2012 issue of the Adirondack Explorer claims that PROTECT’S lawsuit challenging the Adirondack Park Agency’s (APA) permitting of the Adirondack Club and Resort (ACR) project is frivolous. Mr. LaValley’s piece is full of red herrings, innuendo, and ad hominem argument. He calls PROTECT’s views and actions “extreme.” Such charged language is generally used to delegitimize the views of one’s opponents without describing or discussing them. “Extreme” is thrown around a lot these days.

One major omission is Mr. LaValley’s argument is that throughout his op-ed he refused to address the substance of PROTECT’s lawsuit. For Mr. LaValley’s benefit, and that of any one else following the lawsuit, here are some of the specific claims that PROTECT’s lawsuit actually makes:

The APA violated the law when it approved the creation of 80 residential lots on over 4,000 acres of lands classified Resource Management, which were neither on “substantial acreages” or in “small clusters on carefully selected and well designed sites” as the statute creating the APA Act requires.

The APA granted approval without the legally required substantial evidence that the project will not have an undue adverse impact upon the wildlife on the project site.

The APA’s approval decision improperly allows wildlife impact studies and site design to be undertaken after-the-fact rather than submitted as part of the project application, illegally depriving interested persons and the public of the opportunity to participate fully in the project review as the APA Act requires.

The APA violated the APA Act in weighing and balancing economic benefits claimed by the developer against adverse environmental impacts from the project.

The APA approved disturbance of a class 2 wetland (Cranberry Pond) contrary to its own regulations, which require that a development avoid degradation of such a wetland when a reasonable alternative is available.

The APA’s decision lacks legally sufficient findings of fact to support its approval.

The APA illegally determined it would consider the nearly 700-unit project “vested,” that is, allowed to be completely built out in accordance with the original 14 permits, provided the developer conveys just one lot, contrary to the APA Act and its own regulations, which require “substantial expenditures” to have been made for structures or improvement in order to “vest” a project.

In deciding to approve the project, the APA illegally relied on information outside the official adjudicatory hearing record.

That illegal ex parte communications took place between the APA Senior Staff advising Commissioners responsible for deliberating and deciding on the ACR application and representatives of the developer.

A full copy of the lawsuit and relevant materials are available at the end of this article.

The claims in the PROTECT-Sierra Club lawsuit are neither frivolous nor extreme. They are serious and important. They concern the future protection of lands classified as Resource Management, a classification intended to keep logging lands and farm land in viable resource production while protecting its open space character. ACR would turn these lands into an exurban development. And they concern good government. The APA’s primary mission is to balance protection and economic development, but it is not entitled to bend the rules to promote private gain.

While Mr. LaValley claims that PROTECT’s lawsuit is frivolous his refusal to deal with even a single merit of the lawsuit weakens his overall argument. In contrast, Bob Glennon’s (Glennon is a PROTECT Board member and a former Counsel and Executive Director of the APA) counter-piece in the same issue of the Explorer outlined three major claims of the PROTECT lawsuit: 1) defense of all lands zoned Resource Management against an APA permit that ignores the law’s intent and requirements; 2) challenging the APA’s failure to properly evaluate impacts on wildlife despite a requirement that it do so; and, 3) the challenge against the APA’s decision to illegally supplement the hearing record. Due to space limitations, Bob Glennon could only focus on three actions. All told, the PROTECT-Sierra Club lawsuit details 29 separate causes of action.

PROTECT is mindful of the long-term welfare of the residents of Tupper Lake as well as the viability of other small communities in the Adirondacks. We recognize that Tupper Lake is not thriving. At the same time we believe that the protection of both public and private open spaces is of significant economic benefit to Adirondack communities. There is, in fact, a significant body of research showing this (more here, here, here, and here). We also believe that the business plan for ACR is flawed and that the project is unlikely to succeed or to benefit the residents of Tupper Lake. PROTECT provided considerable expert testimony at the ACR hearings to show this. Most independent experts outside of Tupper Lake agree with us.

Far from being a frivolous action as our legal action has been derided by boosters of the ACR development, PROTECT’s lawsuit against the APA challenging its permit for the ACR is quite serious.

And, far from being extremists, PROTECT and the Sierra Club are rational and deliberative and take action only with the best long-term interests of the Adirondack Park in mind.

Is it a frivolous concern that the APA’s review of a project of the magnitude of the ACR with 80 “Great Camp” lots sprawled across thousands of acres of Resource Management (RM) lands failed to require the applicant to prepare a competent wildlife study as the law requires?

A major complaint in PROTECT’s lawsuit challenges the APA’s approval of 80 “Great Camp” lots sprawled across thousands of acres of RM lands in the absence of an adequate wildlife inventory and assessment that demonstrates that no undue adverse impact to wildlife will result. In 2006, the Residents’ Committee to Protect the Adirondacks (a precursor to PROTECT!) and other groups and a number of Tupper Lake residents sued the Town of Tupper Lake over its re-zoning plan to facilitate the demands of the ACR developers. That lawsuit, which sought a ruling that the Town had ignored the State Environmental Quality Review Act, was unsuccessful. The court ruled instead that the SEQR process was unnecessary because the APA is required by the APA Act to conduct a careful and very thorough review of the project’s many potential impacts. Unfortunately, that review did not happen. Moreover, despite substantial testimony and argument about the APA Act’s text regarding “substantial acreages or small clusters on carefully selected and well designed sites” for RM developments, the APA’s decision failed even to mention these criteria.

Is it a frivolous concern that the APA approved a major project in RM lands that does not conform to requirements that principal building lots be designed either in “small clusters” or on “substantial acreage”? The ACR permit does neither.

Clearly, Mr. LaValley is untroubled by future precedent for how RM lands should be developed and is untroubled about negative impacts on wildlife, but shouldn’t he be concerned about a public agency’s fidelity to its law and whether or not it administers an honest, open, and transparent regulatory process?

Is it acceptable for a public agency to rely on information outside the official adjudicatory record – contrary to APA regulations and state law – to justify a key part of its decision? Is it a frivolous concern that a public agency supplements the hearing record with a memo written in 1993, that was never provided to either side during the public hearing process, as a fig leaf to cover the fact that it never truly examined wildlife impacts (a point APA staff acknowledged four times during the public hearing)?

Is it acceptable for a public agency to engage in ex parte negotiations – contrary to APA regulations and state law? New evidence uncovered by PROTECT and the Sierra Club indicates that representatives of ACR had open access to senior APA staff, the persons charged with advising the Commissioners on their deliberations and decision, and had direct input into the hearing staff’s final brief and recommendations.

Is it extreme to expect that a public agency will not subvert its own rules and regulations by illegally supplementing the hearing record? Is it extreme to challenge illegal ex parte communications between a public regulatory agency and a private applicant?

Are these things acceptable to ACR supporters?

What if the shoe was on the other foot and the APA had ignored the law, illegally supplemented the hearing record, and engaged in ex parte communications as it denied the ACR project? What would Mr. LaValley and other ACR boosters think then? Would they be “extremists” if they objected?

In the end Mr. LaValley sees no beneficial role for independent public oversight of public agencies and regulators. Even more troubling is Mr. LaValley’s willingness to turn a blind eye to bad public process at the APA. That’s too bad.

Mr. LaValley says PROTECT is anti-development and that PROTECT’s lawsuit is an effort to “scare off” future developers of projects and resorts of this magnitude. This is nonsense. PROTECT’s precursor organizations supported responsible developments in communities such as Lake Pleasant, Brant Lake, and Old Forge where developers clustered development and worked to mitigate development impacts so that a balance was truly achieved. PROTECT has supported quality developments. ACR never even tried to meet higher standards of conservation subdivision design and planning (the APA even brought in the nation’s leader in this field for a public presentation during the time frame of the ACR project, but made no attempt to adopt these ideas) or low impact development.

While ACR made minor adjustment to its initial project lay-out, the project design remains a bad example of rural sprawl, far from the conservation subdivision design alternatives it could have prepared. PROTECT would not have opposed a properly designed project. In fact, one of PROTECT’s precursor organizations met with the ACR representatives in 2006 and outlined viable alternatives that clustered development in RM, shielded neighbors, removed high elevation development, and implemented stormwater management.

In his commentary, Mr. LaValley contrasts PROTECT’s legal action with the Adirondack Council’s support the ACR project. It appears that he, like many others, did not read the Council’s final brief, which actually argued for APA approval of a far different project (a conservation subdivision rather than rural sprawl) than was proposed by ACR. And, while Mr. LaValley notes that the Council has recently called for “reforms” of the 40-year old APA Act, he fails to mention that PROTECT has also urged modifications to the APA Act.

Unlike others, however, PROTECT has not ignored and will not excuse the procedures the APA used to arrive at its approval of this unprecedented project.

Mr. LaValley seems to engage in his own frivolous charges. One is the claim that PROTECT’s lawsuit has harmed donations to Tupper Lake’s nonprofit community, such as the Wild Center. A call to the Wild Center about this claim found the staff puzzled. They called LaValley for clarification, and he said he was talking about “prospective” donors who would come to town as a result of the ACR project and then support local non-profits. This clarification of his initial charge, of course, does not appear in the Explorer. Perhaps Mr. LaValley would be kind enough to forward the names and contact information for his “prospective” donors list to the Wild Center staff so they could get an early start on enlisting these new supporters.

Another frivolous charge by Mr. LaValley goes so far as to suggest that PROTECT’s lawsuit is keeping people away from Tupper Lake this summer as though the people of New York were saying to themselves, “We were planning to visit Tupper Lake this summer because of ACR, but now that there is this lawsuit, let’s not.” The claim seems absurd on its face. How could one possibly substantiate it? All that it seems to substantiate is the willingness of Mr. LaValley to manufacture facts out of thin air in order to make his case.

ACR has some vocal defenders. PROTECT and the Sierra Club and a few brave souls who live near the development are standing up for those that have no voice. Who will defend the wildlife? Who will defend the forests? Who will defend the wetlands? Indeed, who will defend those citizens of Tupper Lake who oppose ACR but have been intimidated into silence?

When our trusted public agencies subvert the proper and legal public process in order to approve a faulty project, then PROTECT and the Sierra Club must step up and try to hold these agencies accountable and try and protect wildlife, forests, and wetlands. A lawsuit is the appropriate means to hold public agencies accountable. It’ an open, honest and transparent process.

PROTECT shares Mr. LaValley’s aspirations to find models where, as he says, “the natural and human worlds can co-exist and indeed benefit each other.” Unfortunately, the ACR project with its exurban sprawl in unbroken forest areas and hillside developments will never be a case study about successful environmental planning. And, the APA’s review of this project will only be a case study of rigged environmental decision-making.

Anyone who would like to read PROTECT and the Sierra Club’s lawsuit can do so below: